The COVID-19 pandemic has triggered an unprecedented increase in unilateral lawmaking by governors under each state’s emergency exec­utive power statute. These actions have been met with controversy and a significant amount of resistance. This Note argues that the resistance to COVID-19 rules in the United States may be partially attributable to the way state emergency power statutes concentrate virtually all the power to enact emergency rules in the hands of governors.

As this Note demonstrates, the state executive emergency power re­gime, like all emergency power frameworks, grapples with the inherent tension between technocratic agility and democratic legitimacy. Drawing on a novel fifty-state survey, this Note shows how, notwithstanding the drafters’ attempt to balance executive power with legislative constraint, the statutes as written effectively place all substantive decisionmaking in the hands of the governor, leaving only a binary on/off switch for the legislature to terminate the state of emergency. This consolidation of power in a chronic emergency bypasses the deliberative legislative process, increasing technocratic agility at the expense of democratic legitimacy. This Note suggests a revision to the statutes, inspired by the Congressional Review Act, that would encourage legislative deliberation through a fast-track approval process, while still preserving the preroga­tive of the governor to enact pandemic policy.

The full text of this Note can be found by clicking the PDF link to the left.


One of the side effects of the COVID-19 pandemic has been a precip­itous increase in unilateral executive lawmaking across the globe. 1 See Elena Griglio, Parliamentary Oversight Under the COVID-19 Emergency: Striving Against Executive Dominance, 8 Theory & Prac. Legis. 49, 49 (2020) (describing executive dominance in lawmaking in Europe during COVID-19); Eric L. Windholz, Governing in a Pandemic: From Parliamentary Sovereignty to Autocratic Technocracy, 8 Theory & Prac. Legis. 93, 94 (2020) (noting that in many countries “[l]aw-making power has been concentrated in the executive [and] the role of parliaments has been marginalized”). While most countries directed their executive responses at the national level, the United States largely left the response to the governors of the states, with governors relying on their public health emergency powers. 2 Michael Ollove, How Misinformation, Federalism and Selfishness Hampered America’s Virus Response, Pew Charitable Trs. (Aug. 18, 2020),‌​en/research-and-analysis/blogs/stateline/2020/08/18/how-misinformation-federalism-and-selfishness-hampered-americas-virus-response/ [] (noting that the most important factor differentiating the United States’ response from those of other countries was the lack of a national policy). In March of 2020, as it became clear that large-scale testing—which would have ena­bled containment of COVID-19—was impossible due to a confluence of technical, regulatory, and leadership failures, states shifted their strategy to mitigation, necessitating “lockdowns, social disruption, [and] intensive medical treatment.” 3 Michael D. Shear, Abby Goodnough, Sheila Kaplan, Sheri Fink, Katie Thomas & Noah Weiland, The Lost Month: How a Failure to Test Blinded the U.S. to COVID-19, N.Y. Times (Mar. 28, 2020),​html (on file with the Columbia Law Review) (last updated Apr. 1, 2020). On April 1, 2020, forty-seven states issued executive orders closing nonessential businesses statewide. 4 Lindsay K. Cloud, Katie Moran-McCabe, Elizabeth Platt & Nadya Prood, A Chronological Overview of the Federal, State, and Local Response to COVID-19, in Assessing Legal Responses to COVID-19, at 12 (2020), https://www.​publichealth​lawwatch.​org/​s/​Chp1_COVIDPolicyPlaybook-Aug2020-ee2e.pdf []. By the end of April, all fifty governors had declared states of emergency. 5 Samuel Wonacott, All 50 States Have Active Declared Emergencies Related to the Coronavirus Pandemic, Ballotpedia News (July 29, 2020),​2020/​07/29/​all-50-states-have-active-declared-emergencies-related-to-the-coronavirus-pandemic/ []. Immediately after de­claring states of emergency, governors began enacting mitigation policies at a rapid clip, 6 Cloud et al., supra note 4, at 12 (“Once declaring an emergency, states began to issue mitigation policies at a rapid pace of just about every day.”). including closing schools, 7 Id. restricting travel and elective medical procedures, imposing moratoriums on eviction and foreclosure proceedings, 8 Id. at 12, 15. and creating vote-by-mail options for elections. 9 E.g., N.Y. Exec. Order No. 202.23 (Apr. 24, 2020),​userfiles/​Advocacy/​EO_202_23.pdf [].

These actions engendered a storm of controversy as the nation strug­gled with the sacrifices that were necessary to “flatten the curve.” 10 Nick Niedzwiadek, The End of the Imperial Governorship, Politico (Apr. 14, 2021), [] (reporting that “[f]iery debates over things like mask mandates and other economic restrictions were frequent”). On the meaning and origin of the phrase “flatten the curve,” see Howard Markel, America’s Coronavirus Endurance Test, New Yorker (Aug. 6, 2020),​americas-​​coronavirus-endurance-test/ (on file with the Columbia Law Review) (defining the term as “using social distancing to decrease the peak burden on health-care systems and to buy time for scientists and doctors to respond”). Execu­tive decisions relating to the virus quickly became tinged with non-scientific considerations, with the science being “filtered through a very thick political lens.” 11 Peter D. Jacobson, Denise Chrysler & Jessica Bresler, Executive Decision Making for COVID-19: Public Health Science Through a Political Lens, in Assessing Legal Responses to COVID-19, at 61–62 (2020),​Chp7_​COVID​PolicyPlaybook-​Aug2020-ffef.pdf []. Widespread protests indicated the lack of consensus on the appropriate response, and the perceived illegitimacy of governors’ orders hampered their acceptance. 12 See, e.g., Jamie Ballard, Are Lockdowns Unconstitutional? Most Americans Say No, YouGov (Apr. 24, 2020),​04/24/​lockdowns-protest-constitutional-poll-survey-data/ [] (showing that, in a poll of 9,000, 82% of Democrats believed state lockdowns were constitu­tional, but only 42% of Republicans agreed); Lois Beckett, California Governor Promises Changes to Lockdown as Protests Sweep State, Guardian (May 1, 2020),​beach-sacramento/ [] (reporting that “thou­sands of protesters gathered across [California] in defiance of the lockdown”); Allan Smith & Erin Einhorn, Michigan Gov. Whitmer Faces Fierce Backlash Over Strict Stay-at-Home Order, NBCNews (Apr. 14, 2020),​michigan-​gov-whitmer-faces-fierce-backlash-over-strict-stay-home-n1182711/ [​S4TW-9WBL] (reporting that “the backlash” to Michigan’s stay-at-home orders “has been immense”). Particularly in states with Democratic governors and more stringent lockdowns, conservatives decried the exec­utive orders as “authoritarian.” 13 See, e.g., Dan McConchie, Limit Governors’ Emergency Powers, Wall St. J. (Apr. 30, 2020), (on file with the Columbia Law Review); see also Smith & Einhorn, supra note 12. Protesters, many of them maskless and some of them armed, entered statehouses, inducing some state senators to wear bulletproof vests. 14 See, e.g., Coronavirus: Armed Protesters Enter Michigan Statehouse, BBC News (May 1, 2020), [https://​​​46PS-9YJE]; Reid J. Epstein & Kay Nolan, A Few Thousand Protest Stay-at-Home Order at Wisconsin State Capitol, N.Y. Times (Apr. 24, 2020),​2020/04/​24/​us/politics/coronavirus-protests-madison-wisconsin.html (on file with the Columbia Law Review) (last updated May 13, 2020); ‘We’re Not Afraid of Any Virus’: Crowds Gathered Outside of Ohio Statehouse Protesting Coronavirus Shutdowns, Cleveland Scene (Apr. 14, 2020),​​of-any-virus-crowds-gathered-outside-of-ohio-statehouse-protesting-coronavirus-shutdowns/ []. These mitigation efforts waxed and waned as hotspots flared up and subsided across the country. 15 See, e.g., Governor Andrew Cuomo, Update on New York State’s Progress During the COVID-19 Pandemic (Oct. 28, 2020), [] (quoting Governor Cuomo as saying that “more re­strictions” are imposed as soon as a “micro-cluster . . . flares up”); Richard Procter, Remember When? Timeline Marks Key Events in California’s Year-Long Pandemic Grind, CalMatters (Mar. 4, 2021), [] (chronicling California’s “several stay-at-home orders”).

The controversy over the proper approach to controlling the spread of the virus only worsened as the pandemic dragged on. In a few states, legislatures initiated a full-blown showdown with the executive, either try­ing to impeach their governors 16 See Teo Armus, Ohio GOP Lawmakers Are Trying to Impeach Gov. Mike DeWine Over His COVID-19 Rules. He Says They’re Ignoring Reality., Wash. Post (Dec. 1, 2020), (on file with the Columbia Law Review) (“A group of four Republican state lawmakers filed a dozen articles of impeachment against DeWine on Monday, saying the governor violated state and federal laws by requiring masks in public and ordering some businesses to close.”); Lisette Voytko, Pennsylvania GOP Lawmakers Incensed Over Coronavirus Response Seek to Impeach Governor, Forbes (June 16, 2020), https://​www.​forbes.​com/sites/lisettevoytko/​2020/​06/16/​pennsylvania-gop-lawmakers-incensed-​over-coronavirus-response-seek-to-impeach-governor [] (“Republican lawmakers in Pennsylvania introduced articles of impeachment against Democratic Gov. Tom Wolf on Tuesday, claim­ing his handling of the state’s Covid-19 response hurt citizens financially and violated their rights.”). or attempting to curb the governors’ emergency powers. 17 Sophie Quinton, Lawmakers Move to Strip Governor’s Emergency Powers, Pew Charitable Trs. (Jan. 22, 2021),​blogs/​stateline/​2021/01/22/lawmakers-move-to-strip-governors-emergency-powers [https://​perma.​cc/​M8VY-ZMVL] (“For this year’s sessions, in at least half the states, Republicans and some Democrats have proposed limiting their governor’s emergency powers in some way . . . .”). Many of these controversies ended up in court, with plaintiffs alleging that the governors’ emergency actions exceeded the stat­utory authority granted to them by the state legislatures. 18 See Lawsuits About State Actions and Policies in Response to the Coronavirus (COVID-19) Pandemic, 2020–2021, Ballotpedia,​Lawsuits_about_​state_​actions_and_policies_in_response_to_the_coronavirus_(COVID-19)_pandemic,_2020 [] (last visited Apr. 29, 2021).

This Note argues, based on the COVID-19 controversy, that reposing emergency power for a chronic, long-duration emergency solely in the hands of the governor raises an issue of democratic illegitimacy. This dem­ocratic illegitimacy risks curtailing citizen obedience to public health reg­ulations and invites legislative pushback on emergency powers generally. 19 See infra notes 141–146 and accompanying text; cf. Arthur M. Schlesinger, Jr., The Imperial Presidency, at xxviii (Mariner Books 2004) (1973) (“The second concern is that revulsion against inordinate theories of presidential power may produce an inordinate swing against the presidency and thereby do essential damage to our national capacity to handle the problems of the future.”). In order to maintain robust and effective emergency power statutes in all states for similar emergencies in the future, states should revise their emer­gency power statutes to include more substantive legislative input, while retaining as much executive agility as possible.

This Note surveys the legal background of the governors’ emergency actions in the pandemic along with the ensuing legal controversy and sug­gests a revision to the statutes that would inject more democratic represen­tation into executive emergency powers. Part I begins by laying out a conceptual framework for thinking about executive power in an emer­gency as a tradeoff between technocratic agility and democratic legitimacy, arguing for the vital importance of formal legal constraints over purely political ones. This Part then shows how the tension between technocratic agility and democratic legitimacy has motivated legislatures to balance ex­ecutive power and legislative constraint in a variety of emergency power statutes, including, most importantly, the Model State Emergency Health Powers Act (MSEHPA). Part II explains how, notwithstanding this balance, the lack of substantive democratic input on the COVID-19 policy response and the public dissension this generates risks undermining public health policy and emergency powers generally. Finally, Part III offers a suggestion, inspired by the Congressional Review Act, for revising the legal approach to public health emergencies so that it can retain the agility of executive control but involve more representative democratic input. 20 This Note does not take a position on any questions of public health or economic policy but is concerned only with the institutional design question of optimal equilibrium between the responsiveness of concentrated, swift decisionmaking and perceived demo­cratic legitimacy for public health emergencies like COVID-19.